Update: Let me make this clear: I am not commenting on the content of the movie. I am commenting on the content of John Rizzo’s reactions to the movie, particularly his depiction about when and how and by whom “the box” was approved, which — as I say several times — get to the core of the legal problems with torture.

In a development I could have predicted, one of former CIA Acting General Counsel John Rizzo’s chief complaints with Zero Dark Thirty has to do with how the movie depicted “the box.” (This exchange comes from the first comments Rizzo made at an AEI event with him, Dick Cheney flack Marc Thiessen, former CIA Director Michael Hayden, and the director of the torture program, Jose Rodriguez).

MR. RIZZO: The interrogation scenes – I mean, they were – they were striking. They were hard to watch for me, having lived through this and how the – how the actual techniques came to be, and all the safeguards we put on them, all the monitoring by medical personnel during the course of the interrogation – you know, again, it’s a movie, so you know, the character in the movie, the interrogator, seemingly making stuff up as you went along, you’re not talking – OK, bring on the water and –

MR. : (Off mic) – get the buckets.

MR. RIZZO: – and get the buckets – now, the box – people have asked me about the box. And since this whole thing has been declassified now, most of you probably know that one of the techniques was a box, putting a detainee in a box for a – for a limited duration. Now, the box in the movie is not the kind of box that was – that was used. When I say all this, I don’t want to downplay or leave any impression that the actual program, the actual – the actual waterboarding was, you know, was tame or benign. I mean, it was a very aggressive technique, as were all the – all the others. But – so on the whole, I mean, I went into it – I went into it telling myself it was going to be a movie. I was frankly relieved that there were no lawyers involved in the movie. (Laughter.) I would have just spent the next four years at cocktail parties explaining why I wasn’t that lawyer. So I was – so I mean, on the whole, it’s as they said. It was a mixed bag, but it was a terrific movie. And you know, I think it did really take no sides and Miss Bigelow and Mr. Boal, I think, skillfully teed up the complicated moral questions of all of this we’re facing, especially in those first few scary months after the 9/11 attacks.

MR. THIESSEN: Can I – just to follow up on that. I mean, you know, you were the chief legal officer at the time. I mean, would you have authorized the interrogation techniques the way they were depicted? I mean, explain the difference in the box – (chuckles) – explain the – you know, explain that you – do people just throw somebody on a mat and start pouring water over their heads? I mean –

MR. RIZZO: No, no, the – first of all, you know, it was – it was “Mother, May I.” Those interrogators were not allowed to adlib. There were certain specific –as the memos – OLC memos show at the time, I mean, it was a – there was a meticulous procedure to undertake. And before the use of the waterboard – they will confirm this – the interrogators at the site would have to come back in writing, explain why they thought the waterboard was necessary, it would be approved at headquarters. During the time the waterboard was used, which was only until mid-2003, it took the CIA director to approve the use. So it was a much more modern program. Now, the box – I mean, a box is not pleasant. First of all, there is – there was a big box authorized that the detainee could stand in and a smaller box. It wasn’t – it didn’t appear to me to be quite as small as what was depicted in the movie. But yes, there was a box technique. But again, the – I mean, when I – you know, everyone can look at this in a different way. I just had the impression from the scene that the guy was sort of, you know adlibbing as he went along, which was, believe me, far from the – far from the reality. [my emphasis]

The box — particularly the apparent portrayal (I haven’t yet seen the movie) that the torturer ad-libbed when he introduced the box — is as big a concern of Rizzo’s as waterboarding is.

Of course it is.

That’s because the coffin — later dubbed a small box to give it legal cover — used to conduct a mock burial with Abu Zubaydah is the at the heart of the legal problems with torture.

As these posts lay out (one, two, three, four), one of several main reasons CIA asked the Office of Legal Counsel for a memo authorizing torture is because Ali Soufan saw Abu Zubaydah’s torturers prepare to put Abu Zubaydah in a coffin (it’s unclear whether he or his partner Steve Gaudin saw them actually use the coffin). That is one of the things — perhaps the thing — that Soufan labeled “borderline torture.” And because an FBI officer had told CIA’s contractors he might need to prosecute them for what he had seen, CIA needed more durable legal cover than the daily approvals given by Alberto Gonzales every night.

John Rizzo tried to get John Yoo to approve the technique that had already been used on Abu Zubaydah, the one Ali Soufan had labeled illegal. He tried to get mock burial approved as a technique; he kept trying right up until the last days before the Bybee Memo was finalized. But for some reason — I suspect, because Michael Chertoff had already agreed with the FBI that the mock burial Ali Soufan complained about was illegal — it was not included in the final list.

Instead, John Yoo and Jay Bybee approved “small box confinement.” Something that, if everyone remained silent about the intent and desired effect of shoving someone in a coffin-shaped box and leading them to believe they’d be buried alive, would both retroactively approve the use of a coffin that Abu Zubadayh’s (and Ibn Sheikh al-Libi’s) torturers had already used, but also let them use mock burial in the future, in spite of the fact that John Yoo — even John Yoo — had deemed it illegal.

One of the main things an FBI officer judged illegal — mock burial, a technique that had already been used, on the authority of the President — is the only single torture technique John Yoo ever deemed illegal.

Again, I have not yet paid to see the CIA’s propaganda effort. But John Rizzo, at least — the man who tried so hard to get the OLC to approve mock burial — is very concerned both about the size of the box in question (the SERE document used to label it “small box confinement” prescribed size and time limits), but more importantly that torturer in the movie is depicted as using the coffin-shaped box without first getting approval for it.

The movie, it seems, shows a torturer using a coffin before John Yoo and John Rizzo would have deliberated for weeks and decided to call it small box confinement. The movie, it seems, shows a torturer using a coffin to conduct a mock burial [Update: I’ve been told they don’t do a burial in the movie, though it does depict adlib], and doing so in terms that make it clear that the coffin preceded the DOJ approval for it.

I’m extrapolating from Rizzo’s comments, but it seems likely that his problem with the box is that ZD30 depicts its use in precisely the terms that make it illegal, the one act of torture labeled illegal as it was happening, one of the main acts of torture the OLC memos were designed to provide legal cover for.

Frankly, I’m sympathetic to Rizzo’s complaint that this depiction of a torturer ad-libbing by using a coffin is inaccurate (though not to his claim that it was an OLC memo that limited the torture). After all, we know that the White House was responding to the torturers’ “Mother, May I” on a daily or near-daily basis.

We know that the White House was renewing its Gloves Come Off Memorandum of Notification approval for things like mock burial at each step of the process. So it’s not like the torturers executed a mock burial without approval.

The problem, however, is that they executed a mock burial with the President’s approval, weeks and months before the DOJ would deem that one torture technique illegal.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

Look forward, don’t look back. We have become death and he might be gaining. Mixing metaphors, Obama policy, Satchel Paige and Oppenheimer may be a rhetorical crime, but it pales next to squeezing a “coffin” into a “small box”. In other news today, from the Senator who has been tortured… Tell us Chuck, was the surge wunnerful or what? We have no shame, no sense of decency, but I drone on…

“EPIC’s request is a quintessential example of an improper attempt to use FOIA to force the government to open its investigative files to public inspection,” Scott Risner of the DOJ Civil Division said in the court papers filed this afternoon. “But Congress did not enact FOIA to permit such unwarranted intrusion.”

Risner defended the filing of three ex parte declarations, written by DOJ officials, saying that “certain information concerning the requested documents and the bases for their withholding cannot be provided publicly.”

Mayhaps, among other things, their fingerprints are all over Aaron Swartz.

God bless the inspired policy of “look forward, not back.” How else could the world be treated to an AEI “reminisce” show featuring four quintessential torturers and have the lawyer in the group say, to chuckles, that his greatest concern these days about “consequences” for his torture ratifications is: “I was frankly relieved that there were no lawyers involved in the movie. (Laughter.) I would have just spent the next four years at cocktail parties explaining why I wasn’t that lawyer.”

A guy who should have spent the last ten years turning big rocks into little rocks gets to publicly “commend” the movie makers who “skillfully teed up the complicated moral questions of all of this we’re facing” but gets to be relieved that, having gotten the “moral questions” wrong by making the “legal analysis” up and then hiding, these great defenders of whatever they think they have defended can sit, today, in a chair and joke about being inconvenienced by how their styles might have been cramped on the cocktail party circuit had the movie producers included any reference in the film to the “legal issues”.

Thank you, EW, for your painstaking detail in this post. Quite certainly, most people in America watched the film and saw a box, not an issue. The movie’s producers, in their glorious inside sessions with Obama-authorized leakers, obviously learned there was a box in a room — a hundred to one anyone volunteered to them what the “issues” were with that box beyond the “that looks uncomfortable” bit, and just as obviously the producers didn’t ask. After all, trying to describe what was going on at the other end of the phone that dispensed authorization would be so, well, icky. That’s, as they say, where the real crimes were.

May somebody in one of those crappy little countries that also happen to be signatories to the Convention Against Torture take your post, EW, and a transcript of this odious AEI coven, and drag some of these people away. That could make a pretty interesting movie, too, someday.

Reading this confirms how hard it is to avoid comparison with a bygone era. No, I’m not equating the US government’s “war on terror” with the Holocaust. But with respect to the psychology and thought processes of the perpetrators, the similarities are striking. Here you have the epitome of upstanding, middle class, mostly Christian (presumably) Americans in charge of “protecting the public” debating details about a box they stuffed someone into. They chatter (and chuckle) about rules, and medical personnel, and safeguards, and the “legality” of one form of torture versus another. It all mimics Einsatzkommando logic and the effort to legitimize depravity (we had to shoot the women and children too because having got rid of the men, they had no means to sustain themselves, and they’d have starved to death; it was more humane to shoot them). Which is why this conversation long ago transitioned from policy to pathology: To Pathman’s point above, these guys are sick.

This legal quibbling over the box puzzles me. Are we accepting the premise of legal arguments by John Yoo? Waterboarding is indisputably torture. No argument made in favor of torture was made in good faith. Torture is the tell of regimes which have abandoned the rule of law.